(Brotherhood of Railway, Airline and Steamship Clerks, (Freight Handlers, Express and Station Employees PARTIES TO DISPUTE: (Northeast Illinois Regional Commuter Railroad (Corporation

1. Carrier violated the Agreement Rules, particularly Rule 63, when it assigned a 5:30 A. M. starting time to the Ticket Agent's position at Joliet, Illinois, and

 2. Carrier shall now be required to compensate Claimants Zivic and Hartsook under Rule 52(b), three (3) hours at the pro rata rate in addition to their eight (8) hours' compensation for each working day retroactive sixty (60) days from June 10, 1981, and continuing until such time as this claim is resolved and the violation ceases."

 OPINION OF BOARD: On June 10, 1981, the Organization filed a Claim on behalf
 of the two Claimants alleging violation of Rule 63 which
 states:

          (a) (b) At locations where only one position is assigned to work during the twenty-four hour period, the starting time of such position shall be at or between 6:00 A.M. and 8:30 A.M. or at or between 6:00 P.M. and 8:30 P.M."


They state that at the Joliet, Illinois location there is only one position filled and that a starting time of 5:30 A.M. was initiated by the Carrier in violation of the Rule.

 It is their contention also that the Claimants rightfully deserve to be compensated under Rule 52 for 3 hours pay for each occasion they have worked at the 5:30 A.M. sta 10 date, and until such time as the violation is stopped.
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                      Docket Number CL-24967


          Rule 52 states:


          "a) Employees notified or called to perform work not continuous with the regular work period will be allowed a minimum of three (3) hours for two (2) hours work or less, and if held on duty in excess of two (2) hours, time and one half will be allowed on the minute basis.


          b) An employee notified or called to perform work in advance of and continuous with the regular work period shall be paid three (3) hours at the straight time rate for two (2) hours work or less, and at the overtime rate thereafter on the minute basis, for the time required to work in advance of the regular startin


Further the Organization points out that the Carrier failed to respond in a timely manner to their Claim which was filed under Rule 51:

          "a) All claims or grievances must be presented in writing by or on behalf of the employees invol officer of the Carrier authorized to receive same, within 60 days from the date of the occurrence on claim or grievance is based . . . .


The Carrier's response should have been made within 60 days of the filing of the claim, i.e. by August 10, 1981. The Carrier did not respond in writing until September 14, 1981, and thus the Claim should "be allowed as presented" since Rule 51
          . . . Should any such claim or grievance be disallowed, the Carrier shall, within 60 days from t same is filed, notify, whoever filed the claim or grievance (the employe or his representative) in w the reasons for such disallowance. If not so notified, the claim or grievance shall be allowed as presented."


It is also the Organization's contention that this violation is of a continuing nature and therefore payment should be retroactive for 60 days from the date the Claim was filed and payment also should extend until the violation ceases. They cite Se
          . . . A claim may be filed at any time for an alleged continuing violation of any agreement and all rights of the claimant or claimants involved thereby shall, under this rule, be fully protected by the filing of one claim or grievance based thereon as long as such alleged violation, if found to be such, continues. Howeve 60 days prior to the filing thereof."

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                      Docket Number CL-24967


The Carrier contends that the 5:30 starting time was initiated over two (2) years before the Claim was initiated and exhibited a number of copies of this bulletined position dating back to June 1979, which indicated a 5:30 A. M. starting time. They averred that since the Organization was aware of this and never challenged this action it had been accepted as proper.

 It was its position that the Claim not being properly filed under the time limit Rules was invalid from the beginning and it is of no consequence that the Director of Suburban Operations may not have responded to the Local Chairman's letter of June 10, 1981.

 Finally, the Carrier held that this was not a continuing Claim and that, arguendo, if Rule 63 were violated the Claim was time barred because it was not filed within 60 days of the date the starting time changes was initiated.

 With this latter point the Board must agree. There are numerous Awards upholding the distinction between a continuing and non-continuing violation which need not be violation is a single occurrence with a definite date and not a repeated action whereby retroactively and continued violation is warranted.

 However, the Carrier's failure to respond in a timely manner to the organization's written claim cannot be excused by the Carrier's contention that the claim was invalid and therefore no response was required. Rule 51 is explicit and controlling. Thus the claim must be allowed to the extent of a payment of 3 hours to each of the claimants at the appropriate rate for each date worked from the date of the claimed violation, June 10, 1981, until the date of the Carrier's written response, September 14, 1981.

        FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:


        That the parties waived oral hearing;


That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

        That the Agreement was violated.


                        A W A R D


        Claim is sustained in accordance with the Opinion.

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                      Docket Number CL-24967


                              NATIONAL RAILROAD ADJUSTMENT BOARD

                              By Order of Third Division


Attest:
        Nancy J. - Executive Secretary


Dated at Chicago, Illinois this 8th day of June 1987.